Murphy v Eagle Scaffolding, Inc.

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Murphy v Eagle Scaffolding, Inc. 2013 NY Slip Op 30709(U) March 28, 2013 Sup Ct, Suffolk County Docket Number: 03-27573 Judge: Thomas F. Whelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEXNO. 03-27573 CAL. NO. 12-002850rP_ SlJPREME COLRT - STATE OF NEW YORK I.A.S. PART 33 - SUFFOLKCOUNTY PRESENT: Hoti. I HOMAS I . WHELAN Justice of the Supreme Court MOTION DA TE 7-20-12 (#006) MOTION DATE 8- 14-12 (#007) ADJ. DATE 12-10-12 Mot. Seq. # 006 - MD # 007 - MotD SEiZN MIJRI I-IY al1d DANIELLE MURPHY, DAVIS i~ FERBER, LLr) Attorney for Plaintiffs 1 345 Motor Parkway, Suite 20 1 Islandia, New York 1 1749 Plaintiffs. - against - LESTER SCHWAB KATZ & DWYER, LLP Attorney for Defendant Eagle Scaffolding 120 Broadway New York, New York 10271 EAGLE SCAFFOLDING. INC., Defendant. EAGLE SCAFFOLDING. INC., CULLEN and DYKMAN LLP Attorney for Second Third-party KeySpan Energy 100 Quentin Roosevelt Boulevard Garden City. New York I 1530 Plaintiff. - against K F 1 SPA N E N ERG Y COR P 0RAT1ON, Defendant. X l-:A(;l,E SC 4FFOldDING,INC., 11 aintiff, - against - KEYSPAN <;ENlERA fION, De fendant. X [* 2] Murplq Eaglc Scaffolding Indeu N o 03-27573 Pagc nlo. 2 Upsxi the following papers nuinbered I to 2- on these motions for summary iudenient ; Notice ofMotion/ Order read to Show Cause and supporting papers 1 - 25;26 - 41 ; Notice of Cross Motion and supporting papers --: Answering Affidavits and supporting papers 42 - 47; 48 - 53 : Replying Ai fidavits and supporting papers 54 - 55; 56 - 5L Other -; (mn?hffer ;; 4 ) it is, ORDERED that this motion by third-party defendant, KeySpan Energy Corpclration, and second third-party defendant, KeySpan Generation LLC, for summary judgment and this motion by defendant/ third-party plaintiff/second third-party plaintiff, Eagle Scaffolding, Inc., for summary .judgment are consolidated for the purposes 01- this determination; and it is further ORDERED that this motion by third-party defendant, Key Span Energy Corporation, aiid second third-party dcfendant, KeySpan Generation LLC, for an order pursuant to CPLR 32 12 granting summary .judgment i n their favor dismissing the third-party complaint and the second third-party complaint on the grounds i.liat they are barred by Workers Compensation Law S; 1 1 is denied; and it is further ORDERED that this motion by defendanthhird-party plaintiff/second third-party plaintiff, Eagle Scaffolding, Inc.. for an order pursuant to CPLR 32 12 granting summary judgment dismissing plaintiffs complaint and all claims against it is determined herein. lhis is an action to recover damages, personally and derivatively, for i~ijuries Allegedly sustained by plaintiff Sean Murphy on April 1 1, 2003 when he fell from a scaffold at a construction site at the Northpoi t Powcr Plant, Waterside Avenue, Northport, New York. The accident occurred during the course of his w o r k as a mechanic on a project that involved the replacement of a heater. 111 their complaint against defendant Eagle Scaffolding, Inc. (Eagle), plaintiffs allege that plaintiff Sean Murphy was employed by KeySpan Energy, Inc. as a mechanic, that defendant Eagle provided the scaffolding for this project pursuant to an agrzement with his employer, aiid that the scaffold that plaintiff 1.1jed was unsafe. Plaintiffs also allege a first cause of action on behalf of plaintiff Sean Murphy fbr coninion law negligence, a second cause of action on behalf of plaintiff Sean Murphy claiming violations of L,abor Law $5 200, 240 and 241. and a third. derivative. cause of action 011 behalf of plaiiitif f Daiiielle Murphy for loss of services. Dc fendant Eagle commenced a third-party action against Key Span Energy Corporation and a second third-party action against KeySpan Generation LI,C (the KeySpan defendants) for indeniiiificatioii and contribution alleging that on March 29, 2003 the Key Span defendants entered into an agreemiit n i t h Eagle in which Eagle was to deliver and install certain pre-assembled scaffolds jn connection with this project at the Northport Power Plant, and that the agreement was in full force and cl fect at ldie time of plaintiffs accident. In addition, Eagle alleges that said agreement required the Key Span defendants to indemnify, defend and hold Eagle hariiiless for iiij uries. claims, lawsuits and actions arising out of or in connection with Key Span s use, control, supervision, maiiitenance, repair, alteratioii. modification and moving of said scaffold. The KeySpan defendants answered asserting affirmari ve defenses including, that the third-party claims are barred by the exclusive remedy provision ofthe Workers Compensation Law as well as General Obligations Law $ 5-322.1. They also asserted countcrcla ims for indemnificatioii and contribution. The Court s computerized records indicate that thc note ofissuc in this action was filed on Febri,ary 21, 2012. [* 3] 1 11: Key Span deLendants now move fiir suiiimary judgment dismissing the third-party complaint and dit: second third-party complaint on the grounds that they are barred by Workers Compensation Lam 1 1 I n a m u c h as none of plaintiffs injuries alleged in his bill of particulars conititute a grave i n j u l y and no written indemnity agreement existed with Eagle They assert that Eagle has failed to produce or disclorc any such express agreemmt for indemnification or contribution despite demands for any iind all contracts, agreements or work orders by notices for discovery and inspection dated December 15, 2005 and November 29, 2006 served on Eagle. Their submissions in support of the motion include tlie pleadings of the main action and tlie third-party actions, plaintiffs bills of particulars, and plaintiffs deposit 1o i i t ratiscr i p t s It is \vel1 mtled that the party moving for suinmaryjiidgment must make a prima facie showing of entitlement to j udgnient as a matter of law, ofiering sufficient evidence in admissible form to demonstrate the absencs o f any material issues offact (see,4lvavez vProspect Hosp., 68 N Y 2 d 320. 508 NYS2d 923 [ 19861; Zcdiermaii v City of New Yurk, 49 NY2d 557, 427 NYS2d 595 [ 19801; Friends ofAninzals, Iiic. v Associcrked Fur Mjis., f i x , 46 NY2d 1065, 41 6 NYS2d 790 [ I 9791). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Wiiiegrad ,Veru York Uiiiv. Med. Ctr., 64 NY2d 85 1, 487 NYS2d 3 16 [ 19851). Once this showing has been made. however. the burden shifts to the party opposing the motion for suniniary judgment to produce identiary proof in admissible form sufficient to establish the existence of material issues of fact bliich require a trial ofthe action ( A l v n i ~v Prospect Hosp.. 68 NY2d at 324, 508 NYS2d 923, z iy citing to Zuckerimii v Ct ofNew York, 49 NY2d at 562.427 NYS2d ,595). IJ Workers Compeiisation Law 5 1 1 prcwides: An cmployer sliall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her cmployient for such employer unless such third person proves through competent medical evidence that such employee has sustained a grave injury which shall mean only one or more of the following: death, permanent and total loss of use or amputation of a i arm. leg. hand or foot, loss of multiple fingers, loss of inultiple toes, paraplegia or quadriplegia. total and permanent blindness, total and permanent deafness, loss of nose, loss of ear. permanent and severe facial disfigurement, loss of an index finger or an xcliiired iii.jury to the brain caused by an external physical force resulting in pmnanent t ot,i1 d i sab i 1i ty . Plaintiff lists the following injuries in plaintiffs amended bill of particulars: epidural injections in the neck.. p s s i bili ty of fiiture spinal surgery. possibility of future epidural injections, left shoulder straj 11.significant compression fracture of the 6th,7tli,8th and 9th thoracic vertebral body at T2-T8 and 1.9- niirrov, ing at T6-T7 and T7-T8 interspace, epidural injections in the back, numbness of back, large rig111 plural effus~oiicollapse and conipression of the right lung, deviation of mediastinum, pneumonia, pericardial effusion. pain upon deep breathing, difficulty sleeping, difficulty sitting for periods of time, multiple 1-1 ilateral rib fractures with pulmonary contusion, constant niunbness in right arm and hand, numbiies:; of both arms and hands, subcutaneous emphysema in the flank area, internal derangement of [* 4] Murphy \ Eagle Scaffolding I ~ i d NO 03-27573 e~ Page N o . 4 both knees, lcf t knee sprain, possibility of future knee surgery, numbness of both legs and feet, contusion to the proxinial lefi tibia, and various bruises, abrasions, and contusions on various parts of the body. I lere. plaintifYs alleged injuries do not constitute a grave injury pursuant to Workers C ompensation I.aw $ 1 1 . Where the plaintilfhas not sustained a grave iii-jury, section 11 of the Workers Compensation Law bars third-party actions against employers for indemnification or contribution unless the third-party action is for contractual indemnification pursuant to a written contract in which tile einployer expressly agreed to iiidemiiifji the claimant (Tonkirzg v Port Autlt. o f N . Y. & N.J.. 3 NY3d 486. 490. 787 NYS2d 708 [2001]; Ascencio v Briarcrest at Macy Mmor, LLC, 60 see AD3d 606. 607-608. 874 NYS2d 562 [2d De1)t 20091). l he Key Span defendants failed to submit an affidavit or deposition testimony from someone with personal knowledge with their motion papers expressly stating that there was no contractual agreenient between the Keyspan defendants and Eagle providing for indeiniiificatioii (see CPLR 32 ]I 2 [b]; c ~ o i ~ Tullirto~v ~ i ~ ; Pyrriulzid Conzprinies, 78 AD3d 1041. 912 NYS2d 79 [2d Dept 20101; Eldolr v Astoria Gcrieratirzg Co., LP. 57 AD3d 603, 869 NYS2d 209 [2d Dept 200Sl). The Keyspan defendants cannot meet their burden by merely stating thit Eagle failed to produce during discovery a copy of an agreement between the parties. Therefore, the motion by the KeySpan defendants for- summary judgment dismissing the third-party complaint and the second third-party complaint is denied. 13q;Ie now moves for sunimary judgment dismissing plaintiff s complaint and all claims against it on the grounds that it was not at the construction site on a daily basis and did not have the authority to direct. supers ise or control the work that gave rise to plaintiffs injuries: the scaffold was properly installed by Eagle employees on March 29, 2003 and the scaffold s condition was fundamentally altered when it was dismantled by KeySpan employees prior to plaintiffs accident; there is no evidence that kagle w a s provided with any notice regarding, an alleged defect in the scaffold that it constructed; and plaintifys iiyury arose from l i s use of a scaffold that was not in use at the time and his failure to use akailable safety devices probided by his employer. In support of its motion, Eagle submits the pleadings of the main action and third-party actions, plaintiffs bill of particulars, plaintiffs deposition transcript dated Oclober 26. 2004, the d e p o s i t i o n t r a n s c r i p t of Thomas M Polis on behalf of KeySpan Energy Corporation. the deposition transcript of Michael Paladino, president of Eagle, arid copies of scaffold inspect i on tags. I laint~t f sdeposition testimony reveals that he is a utility nieclianic for Key Span Energy and that at thc time o f the accident he had been at the wbject job site for approximately three months but working on the specific job for only two weeks. Plaintiffexplaiiied that a power plant is constructed on elevation, (70 gratings. that the job involved working on a stage heater. a large tube that began at elevation 9- whjch was 19 feet above sea level, and continued up to elevation 5 1 , and that on the date of the accidcnt he was working on a steel grating that was elevation 3 1 . He further explained that the heater wt iit ~hrough each floor with grating siirrounding it. Plaintiff testified that prior to the accident he I - I he KeySpan defendants have submitted with their aftinnation in opposition to Eagle :; motion the affidavits of two employees attesting that there was no contract between KeySpan and Eagle for scaffolding in 2003 \aid a! titi:!vits cannot be considered in support of their motion for summary judgment bee CP1.R 32 12 [b]). [* 5] Murphy v Eagle Scaffoldmg In&\ No. 03-27573 Page N o . 5 was on the scaffold and was told by a niechan c who had been told by the KeySpan foreman to remove a chain hoist, which lie described as a barrel with metal wheels in it and chains that run through it used to lift a heavy oblect. t roni tlie I-beam. a structur;: of the power plant. He added that it W ~ a job for two S people, that he liad performed this task hundreds of times. and that tlie other mechanic was on the grating waiting Ihr plaintiff to lower tlie chain hoist to him. I n addition, plaintiff testified that he had 1 List removctl the le11 chain hoist and was walking towards tlie right chain hoist that was approximately I our I eet a u a l when the floorboards that he w i s walking on fell froin underneath him, and he remembered pipes and boards coming down. He fell 16 feet. According to plaintiff. he had worked on said scaffold for approximately three days prior to the accident. he liad never encountered any problems with the scaffold, and he had seen Eagle working on a lower elevation oi tlie subject scaffolding but lie could not recall when and lie stated that he did not see anyone froiii Eagle on the day of tlie accident. He described the scaffold as continuing from grating to grating. from floor to floor, and as being inouiited on tlie I-beam. Plaintifi also testified that prior to his fall lie did not see that any structural pieces of the scaffolding were removed and tlie wood planks that he stood on wzre not notched or nailed in, instead they were loose. He noted that the scaffold was not tied off to strengthen it. which he had observed on occasion, and which was something that Eagle would do, and that there were no kick plates around the hottom of the scaffold to prevent the usel s feet from sliding out. Plaintiff did not know of anyone who had complained about the scaffold prior to tlie xcident ncr had he observed any repairs being performed on the scaffold prior to the accident. He was unaware of any alterations by KeySpan to the subject scaffold. <I Iiomas M . Polis, an engineer emp1oyt.d as a maintenance supervisor in the maintenance services departmelit of Key Span at the time of tlie accident, testified that tlie accident occurred at the Northport power statiL)n. unit number 4, elevation 35 called the heater platform. In addition, lie testified that he had been i n the area one day prior to tlie accident and that after plaintiffs fall, he observed that the scaffi)ld s structure or framework remained inlact but that some of the planks had fallen down to another le\ el and a(:ross the opening leading down to clevation 19. Mr. Polis also testified that the subject installed before Keyspan s insulation services group ascended it to perform their work several days after which his group ascended it to perform the reinoval phase of their work. He explained that as a general practice, after the scaffold contractor erected the scaffold the scaffold would not be "released" for use until a competent KeySpan employee inspected it. However. lie hac1 no personal knom ledge as to whether myone from Keyspan liad inspected the subject scaffold prior to its use. According to Mr. Polis. uhen his group was o i the scaffold he recalled that the only gaps were between the interior surface and tlic heater vessel. However. he recalled that the scaffold was erected when tlie old heater \\:I\ in place and that KeySpan mechanics rearranged the planking on the scdfold when it came time i o remove the old heater and that after the old heater was removed there was no longer a ?,olid hard decL scaffold anymore. According to Mr. Polis, tlie scaffold was no longer in the same condition its it \\as when it was first installed, it was essentially uiiuseable. Mr. Polis stated that the renio\~al f the heater was extremely obvious, !hat it was removed the night prior to plaintiffs accident. o 1 Ie added Lliat e eryone who has .joined tlie company has received adequate training to understand you \ don t acces> or utilize a scaffold without a hard deck, toe boards, mid rails, handrails. Mr. Polis belie\ ed that the iicw heater was installed the night of plaintiff s accident at which time the KeySpan thc b l ~ d cmployees t ~ i l ~ ~ ~ ~ i iscaffold. According to Mr. Polis. plaintiff should have used an available [* 6] ladder, placing it close to tlie scaffold, to remove tlie rigging rather than using tlie obviously unuseable ~ ~ f i i ) l111 .addilion. Mr. Polis stated that there are crew boxes on elevation 19. 35 and 5 1 in which d harnesses are available. According to Mr. Poi is, yellow safety tape was placed around the scaffold on elevation 3 5 hy the night shift after the heater was removed the night prior to plaintiff s accident. The scat fold had 1wo planks per side. I n opposition to the motion, plaintiffs argue that there are issues offact as to whether the subject scafhld was rearranged by plaintiffs employer prior to plaintiffs fall and, if so, how it was rearranged, tgle initially installed a safe scaffold, and whether said scaffold was inspected by anyone prior to its use. I liey submit plaintiff-s affidavit, the deposition transcript of Edward Sharpe, the results o f a Freedom (of Infbrmation (FOIL) request of OSHA concerning the subject accident, and copies of the affidavits of Key Span employees attached to the affirmation in opposition of the KeySpaii defendants. Plaintiff avers in his affidavit and Mr. Sharpe, a C mechanic working with plaintiff at i.he time of the accident. tcstified that there was no safety ribhon or warnings on the scaffolding indicating that it should not be used. Plaintiff emphasizes that the scaf fold had not been partially disassembled at his level, contrarj to the testimony of Mr. Polis. Plaintiffs note that an OSHA inspection of the subject scaffold re~caled that it lacked standard guardrails. In reply. Eagle contends that it is free from negligence iiiasmuch as the proximate cause of plaintiff s xcident was his use o f a scaffold that had been custom-built around a heating unit for its removal a i i d was substantially altered and dismantled by KeySpan employees without any notice to E;agle. and the failure to use safety equipment. A subcontractor may not be held liable under Labor Law $ 200, and may not be held liable, as an agent of theowner or general contractor. undrr Labor Law 240 (1) or $ 241(6), where it does not have authority to supervise or control the work that caused the plaintiffs iiijury ( ~ e Tonzywk v Jutzefielrl e Assri.. 57 ,2113d 5 18, 868 NYS2d 73 1 [2d Dept 20081; Torres v LPE Land Devel. & Cotzstc, lutc.. 54 AD3d 668. 863 NYS2d 477 [2d Dept 20081). Here, there is no evidence in the record that Eagle had any authority to supervise or control the work thai caused the plaintiffs injury. Therefore, plaintiffs second cause of action on behalf of plaintiff Sean MLrphy claiming violations of Labor Law ($4 200, 240 and 24 1 are dismissed as against Eagle. However. even though Eagle did not Iiave authority to supervise or control the plaintiffs work, it could still be liable under a common-law theory of negligence for improper installaticln of the scaffbld ( see loiiiyirk v .Jiiiie!ficdAssti., 57 AD3d 5 13, 868 NYS2d 73 1 : Kelclrakas v Mcrssclpequii Wiiter Dist.. 38 AD3d 71 7. 8-22 NYS2d 625 [2d Dept 200 71; Urbinci v 26 Ct. S .Assoc.. LLC. 12 ,4D3d 225, 784 f NYS2d 524 11 st Lkpt 20041; Keolititze v Littlepcirk Hoirse Corp., 290 AD2d 382, 730 NYS2d 664 [ 1st DcpL 2002 J ) 1 Iere. Eagle failed to demonstrate that the scaffold was initially properly installed by Eagle employccs such that it cannot be liable for plaintifFs injuries inasmuch as Michael Paladino. president of Eagle. tcstificd at his deposition that he was I lot present at the construction site when the subject scaffold was installctl, and there is no deposition testjrnony or affidavit from Eagle s on-site foreman Michael Ruic or any nf the other crew members that hlr. Paladino testified would have been ai the construction site ,it the timc of installatiori who would havz personal knowledge of the proper iiistallation of the subject sc;ifibld Thus, there remain issues o .fact as to, among other things, whether Eagle proper1.y [* 7] Murphy I Eagle Scaffolding Indc?i No. 03-27573 Page N o . 7 inctal led the subject scaffold. whether the subsequent removal and rearrangement of p1,inks by KeySpan employees was tlie sole proximate cause of plaintiff-s accident or whether even if tlie scaffold was not properly installed by Eagle, the removal and rcbarrangement of planks by KeySpan employees was a iupcrceding. intervening cause of plaintiff s injuries thus relieving Eagle of any liability (,ree Vouzicrrzcis v Boticisem, 262 AD2d 5 5 3 , 693 NYS2d 59 [2d Dept 19991). Eagle ,dso argues i n its motion papers 1 hat it is entitled to indemnification pursuant to the terms ,tnd condii ions of its scaffold inspection tag sheets provided with the installation of each scaffold since the accident arose from the misuse of its scaffold with no negligence on its part. 11 submits the clcposition testimony of blr. Paladino in which he identifies the scaffold inspection tag caution sheet rised by the company stating that it is used and constitutes the contract for each installation, identifies a caution sheet dated March 29, 2003, signed only by his on-site foreman Michael Ruic, wliicli he believes pertains to the subject project based on its date, then testifies that he does not have such a sheet signed by a representative of KeySpan for this particular project but that he did have such slieets for other projects at I he Northport Power Plant. Eagle submits a copy of a scaffold inspection tag sheet dated March 29. 2003 for customer Key Span Northport stating scaffolding for asbestos use and Customer agrees to inspect scaffold and scaffold components for visible defects before each work shift and after tiii} occurrence ivliicli could affect the structural integrity ... Customer agrees lo contact Conipanj i mniediately if material appears to be damaged in any way for inspection and will postpone \I1 \\ark nntil inspection is completed and daitiaged material is replaced at which time Company will approve coiitinuation of work (as stated on reverse side #1) and Please See Reverse Side Additional For Terms a i d Conditions signed only by Michael Ruic as the representative from Eagle with the accepted by name and signature lines left blank. Paragraph 8 of said sheet entitled Indemnification provides The Customer agrees to fully indemnify and hold harmless the Company from all actions, claims, cost, damages. liabilities and expenses Including reasonable attorney fees, which may be brought or made against Company, which in any way arise out of or by reason pf [sic] tlie use of [sic] misuse of the Company s equipment rented hereunder, excerpting [sic] only such actions, claims, cost, damages, liability and expenses resulting from the sole negligence of the Company. The intent hereof is that the C11:jtomer shall fully indemnify and liuld harmless the Company to tlie maximt~m extent allomablc ky law. I he Key Span defendants submit an affidavit in opposition arguing that Eagle has failed to proffer sufficient evidence f roni parties with personal knowledge to demonstrate as a matter ol law that prior to said accident, KeySpan expressly agreed to indemnif>/Eagle for any accident arising out of tlie use of the 4ubject scaffold. Attached to the opposition papers are the affidavits of Lorraine Lynch, treasurer of Key Span IEiiergj Corporation. attesting that Kzy Span Energy Corporation did not enter into any coiitrxts with Eagle. and of Reshmi Das, assktant secretary of National Grid Generation LLC that was tornicrly L i i o m n a s Key Span Generation LLC. attesting that he is familiar with tlie conipany s records iclating to the Northport Power Plant and the procedures for entering into contracts i n 2003, and that no 1 tic Court notes that Eagle has also submitted two scaffold inspection tag sheets dated alier the date ofthe stib.icct ,.ic:ciJeiit for custoiner Key Span Port Jefl which are signed by representatives of Keyspain and Eagle. [* 8] llurpliy v ]&le Scaffolding Index No. 03-27573 Pabe N o . 8 contract existed between &le Po\vcr I lar t in 2003. and Key Span (ieneration LLC concerning scaffolding at the Nortliport [A] contract may be valid even if it is not signed by the party to be charged, provided its subjcct mal ter docs not implicate a statute-such as the statute of frauds (General Obligations Law $ 5-70 I )-thal iiiiposes such a requirement (Flores v Lower E. Side Serv. Ctr., Inc., 4 h Y3d 363, 368, 795 NYS2tl 49 1 120051; Priceless Ciistoni Homes, Zric. v O Neill, AD3d -, 201 3 NY Slip Op (113 9 1 [ 2d Dcpt 301 31). LA]n unsigned contrxt may be enforceable. provided there i:; objective evideiice establishing that tlie parties intended to be bound (Flores v Lower E. Side Seuv. Ctr., Ztzc., 4 NY3d at 309. \ee GeIt~i 55 OrcltarclSt., LLC, 29 AD3d 735. 736, 81 5 NYS2d 253 [2d Dept 2006]., see v tilso Priceless Custonz Honzes, Znc. v O Neill, AD3d ~, 2013 NY Slip Op 01391 [2d Dept 20131). . I n dzteiniining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look ... to the ob-jective nianifestations of the intent of the parties as gathered by their expressed \lords and deeds (Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d at 368, quoting Brown Brm. Elec. C oiitr.7. v Becrnz Constr. Corp.,41 NY2d 397, 399, 393 NYS2d 350 [1977]; see Miizelli Comtr. Co., Znc. v Volmar Constr., Z m . , 82 AD3d 720, 721, 917 NYS2d 687 [2d Dept 201 11; see ulso Priceless Custoin Homes, Inc. v U Neill, AD3d __ . 2013 NY Slip Op 01391 [2d Dept 20131). Thi. adduced evidence raises issues of fact as to, among other things, whether the scaffold inspection tag shezt dated March 29. 2003 referred to the scaffold used by plaintiff, and if so whether its terms are cnfijrceabllc. igainst the KeySpaii defendants b,zsed on their use of the scaffold after its installation by 13ag,le In \ iew of tlie foregoing. Eagle is not entitled to summary judgment on its third-party contractual i ndenini ficat i on claiiiis. ~ ~ ~ Moi-eover, as there are material issues of fact as to whether any negligence by Eagle caused plaintiff-s harm. Eagle is not entitled to summary judgment disniissiiig the third-party I:ouiiterclaims ag ai 11 st it lh r c oniiiio i i - 1aw i lidenin i f cati on and contribution (see Men rlez v Uizion Tlz e ologictil i Seniiriary in City qfNerv York, 17 AD3d 271, 793 NYS2d 420 [ I st Dept 20051; CorutGi v Professioizal Drrl rr Mgt., Iiic.. 259 AD2d 60, 693 NYS2d 5516 [lst Dept 19991; Slieelian v Fordliani Univ., 259 AD2d 3 2 8 , 6 8 7 i JYS2d 22 [ 1 s t Dept 19991). Accordingly, tlie motion by the Key S p m defendants for suiiiniary judgment dismissing the thirdparty complaint and the second third-party coriplaint is denied aiid tlie motion by Eagle for summary .judgment dismissing plaintiff s coinplaint aiid all claims against it is granted solely as to plaintiffs second cause of action.

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